Jailing people without charge just isn't the American way

Conservatives are fond of accusing federal courts of making law rather than interpreting it, but two U.S. District Courts of Appeals pointed out last week that the president and his administration have awarded themselves powers of detention that cannot be found in the Constitution.
In separate cases -- one involving a U.S. citizen and one involving 660 foreign nationals being held on a U.S. base in Guantanamo Bay, Cuba, the courts had the courage to say that the United Stales can't hold citizens indefinitely, without access to counsel and without charging them with a specific criminal offense and can't hold battle detainees unless they're declared prisoners of war.
The power of the president is defined in Article II of the Constitution. It's about 700 words long, but none of those words is enemy or combatant. None of those words implies that the president can unilaterally declare a person an enemy combatant, and in so doing deprive that person of the legal protections that are specified in the Bill of Rights.
Congress arguably could do so. The Constitution gives Congress the power to suspend the writ of habeas corpus if the public safety requires it during a rebellion or invasion. And a law passed in 1971 -- a belated reaction to the detention of thousands of Japanese-Americans during World War II -- bans the detention of citizens without express congressional authorization.
The rulings
The 2nd U.S. Circuit Court of Appeals in New York ruled that Jose Padilla, a U.S. citizen arrested in Chicago in May 2002 and accused of being an Al-Qaida collaborator who may have been involved in a dirty bomb plot, must be released from military detention within a month. The 9th Circuit in San Francisco ruled that detainees brought from Afghanistan to Guantanamo during Operation Enduring Freedom must have access to attorneys and hearings.
The Supreme Court of the United States will have the last word. But in the meantime, White House spokesman Scott McClellan tried to put a populist spin on the conflict. "The president's most solemn obligation is protecting the American people," he declared. But the oath that every president must take requires him to "preserve, protect and defend the Constitution of the United States."
Both the detention of Padilla and the Afghan prisoners came when America was still understandably on edge over the Sept. 11, 2001 attacks. But months of detention have dragged into years and it is time for the administration to justify the detention of U.S. citizens within the confines of the Constitution and the holding of foreign nationals in ways that are consistent with international law.
The United States would not tolerate its citizens being treated by another government as it has chosen to treat these detainees. Not only a constitutional issue is at stake, but also whether the United States can be viewed by the rest of the world as a nation of laws.